Affirm in Part, Reverse and Render in Part, and Opinion Filed August 20, 2013 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-11-01545-CV 

BROYHILL FURNITURE INDUSTRIES, INC. 

AND RANDALL LAVERCOMBE, Appellants 

V. 

RANDY MURPHY AND DAVE SHAFFER 

D/B/A SOUTHWEST FURNITURE BROKERS, Appellees 

On Appeal from the 44th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. 08-13276 

MEMORANDUM OPINION 

Before Justices Francis, Lang, and Evans 

Opinion by Justice Francis 

We withdraw our opinion dated June 19, 2013, and vacate the judgment of that date. 

This is now the opinion of the Court. 

Broyhill Furniture Industries, Inc. and Randall Lavercombe appeal the trial court’s 

judgment in favor of Randy Murphy and Dave Shaffer d/b/a Southwest Furniture Brokers. 

Appellants claim there is no evidence to support the jury’s oral contract and fraud findings and 

challenge the award of attorney’s fees. In two cross-points, appellees contend the trial court 

erred by vacating the jury’s award of attorney’s fees and by not entering judgment on its claim 

for quantum meruit. We affirm in part and reverse and render in part. 
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In 1991, Murphy and Shaffer started SFB, a furniture liquidation business. The men 

opened a store in Tyler in 2007. In mid-July 2007, Bruce Poland, a Broyhill upholstery 

representative, stopped by the store and spoke with the men about doing a liquidation sale, 

referred to as a “Pop-up Sale,” for Broyhill in Dallas. According to Poland, Broyhill had 

significant overstocks. In addition, Poland told them that Charlie and Tina Prenzi, a couple who 

had the exclusive right to sell Broyhill in the DFW area through their Home Collection Stores, 

had some old, slow-moving inventory they needed to turn into cash, and Broyhill wanted the 

Prenzis in on the sale. After Poland visited SFB, Lavercombe, vice president of sales, called 

Murphy and Shaffer and set up a meeting in Las Vegas to discuss the sale. 

In late July, Murphy and Shaffer met in Las Vegas with Lavercombe, Poland, and Billy 

Joe Taylor, the case goods representative for Broyhill. Case goods are non-upholstery furniture 

items and include dining room and bedroom sets, dinettes, end tables, coffee tables, and other 

wood furniture. Fred Bates, a Broyhill consultant, was scheduled to attend the meeting but went 

to Dallas instead to look for a building to house the sale. The Broyhill people told Murphy and 

Shaffer that Broyhill had over $20 million of overstocked and discounted merchandise to sell and 

SFB was the only promoter being considered for the liquidation sale. When Murphy and Shaffer 

told Lavercombe their fee was 10% commission on gross sales, he agreed. The three men also 

agreed merchandise was to be sent on consignment, meaning Broyhill would ship the 

merchandise, tell SFB what price Broyhill wanted, and SFB would sell it. The merchandise still 

belonged to Broyhill and, if it did not sell, it would be returned to Broyhill. And they agreed 

merchandise would be shipped within three working days of orders. The parties discussed 

starting the sale in September, envisioning it would last about five months. Lavercombe said 

Bates would also help with securing favorable advertising rates for the sale. 
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In August, about two weeks after the Las Vegas meeting, Murphy and Shaffer met with 

Lavercombe and Tina and Charlie Prenzi in Addison. Contrary to what Poland told Murphy and 

Shaffer, the Prenzis did not have an exclusive dealership right to Broyhill products. 

Nevertheless, the Prenzis’ participation in the Pop-up Sale was considered necessary because 

they had a large Broyhill presence in the DFW area. Although the Prenzis agreed to participate 

in the sale, they did not want to pay SFB a 10% commission on their sales. Lavercombe again 

said there was over $20 million of Broyhill furniture that needed to be liquidated. Shaffer and 

Murphy offered to bring in other merchandise, items that Broyhill did not make, including 

grandfather clocks, recliners, Oriental rugs, and mattresses. 

In late September or early October, Chris Canipe, the manager of the credit department at 

Broyhill, told Murphy he could not get Broyhill goods on consignment, that consignment was a 

“dirty word . . . in the credit area.” Canipe said Murphy would have to buy the furniture on 

credit. Although Murphy asked for terms of 120 days to pay, Canipe said he would give him 90 

days. Canipe drew up a security agreement and sent it to Murphy to sign. Murphy then called 

Lavercombe and said “there were problems, and the deal was consignment.” Lavercombe 

assured Murphy “the deal’s consignment,” explaining that the credit department just wanted to 

invoice it, telling Murphy to treat it as a “memo bill.” A memo bill is a document used to track 

inventory in a consignment sale arrangement that appears to be an invoice but is not intended to 

be paid. Murphy repeated that it had to be consignment, and Lavercombe agreed. Ultimately, 

both Murphy and Shaffer signed the security agreement which had a personal guarantee of 

$400,000. Murphy said he treated the security agreement as only a personal guarantee. He 

believed Broyhill wanted the security agreement because, for a period of time, SFB would have 

both the merchandise and the money from any sales; therefore, the security agreement gave 
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Broyhill the assurance that SFB would pay Broyhill the proceeds from the sales of Broyhill’s 

inventory. 

Although Murphy and Shaffer had wanted to start the sale in September, there were 

significant delays. When the building Bates had in mind was no longer an option, Lavercombe 

recommended a friend who was a commercial real estate broker to secure a location for the sale. 

The broker went on a one-month vacation before locating a building in Grapevine that was 

suitable. The Prenzis signed the lease, dated November 1, which was guaranteed by Broyhill. 

The building required substantial work to convert it to a 50,000-square-foot showroom, 60% of 

which was to be dedicated to Broyhill merchandise. The building finally received a certificate of 

occupancy in late November and, although both Murphy and Shaffer said it was a “terrible time 

of year” to conduct a furniture liquidation sale, they scheduled the sale, at Lavercombe’s 

insistence, to open December 8. 

In early November, while waiting for the building to be ready, Shaffer contacted 

personnel in Lane, a division of Broyhill, and ordered approximately $400,000 worth of 

merchandise. Around the end of November, two representatives for Lane dropped by the 

showroom and told Shaffer that they would not be shipping the Lane merchandise he had 

ordered. They assured Shaffer it had nothing to do with SFB’s “integrity” or “credit.” Shaffer 

and Murphy pulled merchandise out of their Tyler store to supplement the sale when Lane 

cancelled. 

On December 7, Poland sent an email to the Fort Worth Star Telegram with an 

attachment announcing the Pop-up Sale. The attachment, a letter approved and signed by Jeff 

Cook, the president of Broyhill, announced the Pop-up Sale, stating it was to “liquidate over $20 

million in quality home furnishings at or near wholesale dealer cost.” According to the letter, the 
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merchandise included discontinued collections, overstocks, and market samples, but did not 

include factory seconds. Shaffer explained wholesale dealer cost in terms of the pricing at the 

sale, using a sofa as an example. If Broyhill consigned the sofa to SFB for $500, the cost to the 

public would be the wholesale price of $1000. The consignment price of $500 would be paid to 

Broyhill. Of the remaining $500, $100 was commission to SFB, and $50 was a 5% sales 

commission to the individual salesperson who made the sale of the piece of furniture. After 

deductions for certain expenses, including advertising and the building lease, the residual profit 

flowed to the Prenzis. 

Murphy did not want to start the sale shortly before Christmas, but Lavercombe told him 

to do so or Broyhill would “hold the merchandise.” From the beginning, SFB had problems 

getting merchandise from the Broyhill factory in North Carolina. Although the agreement had 

been merchandise would ship within three working days of orders being placed, weeks would 

pass without SFB receiving shipments on orders. At times, only partial orders would arrive. 

These problems persisted throughout the sale. According to Taylor, SFB would place an order 

for fifty bedroom suits and Broyhill would ship between twenty to thirty suits. Of those that 

shipped, many were missing pieces, such as chests and nightstands. Dining room sets arrived 

without china cabinets; entertainment centers and other sets arrived with parts missing, making 

them impossible to sell. Taylor said they lost sales because they did not get the furniture they 

needed; simply put, “the merchandise wasn’t there.” He would not “point fingers and say it was 

[Cook’s] or [Lavercombe’s fault], but it didn’t all come in.” 

Broyhill had a “Vintage World” line and a “100th Anniversary” line. The quantities 

available were “staggering,” and Murphy said it was a “good selling suit.” Murphy and Shaffer 

brought the ones they had from Tyler for the sale and tried to order more from Broyhill, but the 
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company delivered only “three or five suites.” In early February, Murphy and Shaffer learned 

that Big Lots was advertising a sale purporting to have the same $20 million in Broyhill goods 

that SFB had been promised. The Big Lots advertising specifically showed the 100th 

Anniversary line. 

According to Murphy, they tried to order all the furniture they needed for the sale but just 

could not get it. By the end of May, the sale ended; in June, SFB held an auction of the 

remaining merchandise. All proceeds on Broyhill merchandise went to Broyhill because it was 

sold on consignment; likewise, sales on other merchandise went to those vendors. After the 

auction, unsold Broyhill furniture that remained in wrapping was sent back to Broyhill. 

Approximately $175,000 worth of merchandise that was out of the wrapper and on the floor went 

to SFB’s warehouse in Tyler because Broyhill would not take it back. 

Appellees sued appellants for breach of contract, quantum meruit, and fraud, among other 

claims not relevant to this appeal, and they requested attorney’s fees. Following a jury trial, the 

trial court entered judgment on the verdict. After appellants filed numerous post-judgment 

motions, the trial court entered its final judgment awarding appellees $455,000 from Broyhill for 

breach of contract and $100,000 from Lavercombe for fraud; both awards conformed to the jury 

verdict. Although the jury awarded appellees $690,000 in attorney’s fees for trial, $131,250 in 

the event of an appeal to the court of appeals and $112,500 in the event of an appeal to the 

supreme court, the trial court reduced these amounts to $460,000, $30,000, and $20,000 

respectively. Both sides appealed. 

In their first issue, appellants claim we must reverse the $455,000 judgment based on 

breach of oral contract for services because no oral agreement existed. They alternatively argue 

that, even if an oral agreement did exist, it was superseded by the written security agreement or 
 7

barred by the statute of frauds. Finally, appellants contend appellees failed to prove they 

sustained any damages as a result of Broyhill’s failure to comply with the oral agreement. 

Appellants do not, however, complain about the evidence supporting the finding of a breach of 

contract. 

When, as here, appellants attack the legal sufficiency of an adverse finding on an issue on 

which they did not have the burden of proof, they must demonstrate that no evidence supports 

the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). “The final test for legal 

sufficiency must always be whether the evidence at trial would enable reasonable and fairminded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 

(Tex. 2005). We review the evidence in the light most favorable to the verdict, crediting 

favorable evidence if reasonable jurors could and disregarding contrary evidence unless 

reasonable jurors could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010). 

Although appellants claim there is no evidence to support the jury’s finding of an oral 

contract for services between Broyhill and SFB, we disagree. During trial, Shaffer, Murphy, 

Charlie Prenzi, and Taylor each testified SFB was approached by Lavercombe and asked to sell 

Broyhill products that were overstocks, discontinued, and market samples at the Pop-up Sale. 

According to all four men, Lavercombe agreed that SFB would sell the products in exchange for 

a 10% commission on sales. Shaffer, Murphy, and Taylor testified Lavercombe agreed the 

merchandise would be sold on consignment and that Broyhill would take back any remaining 

inventory at the end of the sale. Taylor remembered that Lavercombe said there would be plenty 

of inventory, and he wanted the sale to start as soon as possible. The evidence also shows 

Broyhill told SFB it had in excess of $20 million in “quality home furnishings” that it needed to 

liquidate at the Pop-up Sale. Broyhill contacted the real estate broker who found the location, 
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and Broyhill guaranteed the lease. Sixty percent of the leased space was dedicated to 

merchandise of Broyhill brands and lines. The parties discussed the sale lasting approximately 

five months. Although Lavercombe denied he agreed to the 10% commission, he conceded his 

memory about meetings and negotiations was not clear so others who were present at the 

meetings might have better recollection of details. He also told Murphy that, despite the security 

agreement, the merchandise was on consignment. 

During trial, certified public accountant Stephanie Anderson testified without objection 

as an expert witness for appellants. Anderson reviewed the documents produced as well as 

certain testimony in formulating her opinions, including emails from Lavercombe to Poland, 

Taylor, and other Broyhill personnel. She noted that, when discussing shipping furniture to SFB, 

Lavercombe used the phrase “memo bill” which “would typically be an accounting document 

that recorded the inventory was sent on consignment or, in other words, that it was not sold until 

some condition had been met.” Anderson also said that when parties use memo bills, invoices or 

receipts may not accurately reflect the true terms or arrangement between the parties. Another 

significant factor in determining whether the sale was a consignment sale was that Broyhill took 

back four to six truckloads of furniture. According to Anderson, under Generally Accepted 

Accounting Principles, a product is not considered sold if there is a right of return. This 

evidence led Anderson to the opinion that Broyhill contracted for SFB’s services to sell furniture 

and Broyhill inventory was sent on consignment to the Pop-up Sale. 

This, along with other evidence at trial, shows Broyhill contracted with SFB to perform a 

service—manage a liquidation sale event—for a 10% commission and that the merchandise 

would be sent on consignment. Because appellants failed to demonstrate there was no evidence 
 9

supporting the finding of (1) an oral contract that (2) was predominantly for services, we 

overrule these portions of their first issue. 

Appellants also contend the oral contract was superseded by the written security 

agreement because the agreements “are between the same parties” and “deal with same subject 

matter.” 

A party raising the affirmative defense of novation has the burden prove (1) the validity 

of a previous obligation; (2) an agreement between the parties to accept a new contract; (3) the 

extinguishment of the previous obligation; and (4) the validity of the new agreement. Vickery v. 

Vickery, 999 S.W.2d 342, 356 (Tex. 1999). “The substitution of a new agreement occurs when a 

later agreement is so inconsistent with a former agreement that the two cannot subsist together.” 

Scalise v. McCallum, 700 S.W.2d 682, 684 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). Absent 

inconsistent provisions, a second contract will operate as a novation of a first contract only when 

the evidence establishes that the parties to both contracts intend and agree “the obligations of the 

second shall be substituted for and operate as a discharge of the obligations of the first.” 

Chastain v. Cooper & Reed, 152 Tex. 322, 325, 257 S.W.2d 422, 424 (1953). Whether a 

subsequent agreement works a novation of the first is a question of intent. Fulcrum Cent. v. 

AutoTester, Inc., 102 S.W.3d 274, 277 (Tex. App.—Dallas 2003, no pet.). A novation is never 

presumed; it must be clear that the parties intended a novation. Id. In the absence of an express 

agreement, whether a new contract operates as a novation of an earlier contract is “usually a 

question of fact, and can only become a question of law when the state of the evidence is such 

that reasonable minds cannot differ as to its effect.” Chastain, 152 Tex. at 325, 257 S.W.2d at 

424. 
 10

The party raising the defense must plead it as well as submit a jury question in proper 

form. See TEX. R. CIV. P. 278, 279. Ordinarily, a defense is waived if the party relying on it fails 

to submit an issue. TEX. R. CIV. P. 279. This rule applies in all cases except when the defense 

has been conclusively established. Pope v. Darcey, 667 S.W.2d 270, 274 (Tex. App.—Houston 

[14th Dist.] 1984, writ ref’d n.r.e.). Because Broyhill did not attempt to submit the defense of 

novation now asserted on appeal, the company has waived the defense unless it was conclusively 

established. See Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 343 (Tex. App. —Austin 

2004, no pet.). 

The evidence shows that, in November, the manager of Broyhill’s credit department told 

Murphy that SFB could not order and receive merchandise on consignment. He then sent a 

security agreement to Murphy to sign which provided for the sale of merchandise on credit. 

Upon receiving the security agreement, Murphy spoke with Lavercombe. Murphy reminded 

Lavercombe that SFB had agreed to run the liquidation sale for a commission and “the deal was 

consignment.” Lavercombe assured Murphy that nothing had changed, the deal was, in fact, 

consignment, and that Murphy should treat it as a “memo bill.” Murphy understood the 

agreement was to assure Broyhill that although SFB had both the merchandise and the money 

from the sales, SFB would pay Broyhill the proceeds from the sales. Murphy and Shaffer both 

signed the agreement, treating it as a personal guarantee. In light of this and other evidence 

adduced at trial, Broyhill did not establish as a matter of law that the security agreement 

superseded the oral consignment agreement. Under these circumstances, we conclude this 

ground is waived. We overrule this portion of appellants’ complaint under their first issue. 

Next, appellants argue we must reverse the jury’s verdict because the statute of frauds 

was not satisfied by the agreement. The business and commerce code provides: 
 11

Except as otherwise provided in this section a contract for the sale of 

goods for the price of $500 or more is not enforceable by way of action or defense 

unless there is some writing sufficient to indicate that a contract for sale has been 

made between the parties and signed by the party against whom enforcement is 

sought or by his authorized agent or broker. 

TEX. BUS. & COM. CODE ANN. § 2.201 (West 2009) (emphasis added). 

 As detailed above, the jury found, and we have concluded the evidence is legally 

sufficient to support the finding that the oral contract was for goods and services, with the 

services portion being the dominant factor. Under these circumstances, the oral agreement was 

not barred by the statute of frauds. See id. We overrule this argument under appellants’ first 

issue. 

Finally, appellants argue the evidence is legally and factually insufficient to support the 

$445,000 damage award for breach of contract. Appellants do not challenge the jury’s finding 

that Broyhill failed to comply with the agreement, nor do they argue an inappropriate measure of 

damages was employed. Rather, they argue only there is no evidence showing SFB could have 

sold any amount in excess of what it actually did. In support of this argument, appellants point 

to evidence that SFB ordered $2.27 million in furniture from Broyhill, took delivery of $1.6 

million in furniture, and returned several truckloads at the end of the sale. 

Generally, the measure of damages for breach of contract is that which restores the 

injured party to the economic position it would have enjoyed if the contract had been performed. 

SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 317 

n.6 (Tex. App.—Dallas 2004, no pet.). The benefit of the bargain is measured by the prevailing 

party’s anticipated receipts and losses caused by the breach less any cost or other loss it has 

avoided by not having to perform. Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 889 

(Tex. App.—Dallas 2004, pet. denied). “A party who breaks his contract cannot escape liability 

merely because it is impossible to state or prove a perfect measure of damages.” Sw. Battery 
 12

Corp. v. Owen, 131 Tex. 423, 428, 115 S.W.2d 1097, 1099 (1938). We distinguish between 

uncertainty as to the fact of damages, which may preclude recovery, and uncertainty as to the 

amount of damages, which will not defeat recovery. Id. When, as here, the fact of damages is 

clear, the plaintiffs are required to prove their damages with “reasonable certainty.” Qaddura, 

141 S.W.3d at 890 (citing Bildon Farms, Inc. v. Ward County Water Improvement Dist. No. 2, 

415 S.W.2d 890, 897 (Tex. 1967)). 

Although appellants argue we must assume SFB is not entitled to any damages because 

SFB did not sell all the furniture it received, this logic ignores that the jury was asked to 

determine what appellees would have earned but for Broyhill’s failure to comply with the 

agreement. The jury heard evidence that Broyhill represented it had over $20 million of 

inventory to sell. Broyhill assured SFB there was sufficient inventory, in fact, “there would be 

plenty” of quality inventory for the sale, and that SFB was the only promoter being considered 

for the liquidation sale. Although SFB had not done a sale of this magnitude before, it had 

managed a sale of $5 million in furniture. 

According to Taylor, the first three or four weeks of the sale were good, but thereafter, 

things fell apart. SFB placed orders, many of which were cancelled. Orders that did arrive had 

incomplete and broken suits. People who ordered bedroom suits later discovered there were no 

nightstands or chests. Taylor drove around, looking for parts to complete the suits. He stated the 

obvious—it is not easy “to sell imbalanced suits.” Murphy sent a letter to Lavercombe asking 

for help. He listed the issues, including orders not shipping as well as orders being cancelled, but 

Lavercombe did not respond. By February, it was clear there was an imbalance in inventory, and 

the sale was not going well. In spite of all this, Shaffer testified they sold $4.5 million during the 

sale. 
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In addition, the jury heard Anderson’s testimony in which she provided a formula to 

assist in determining damages: the amount of sales the Pop-up Sale would have generated but 

for appellants breach multiplied by the 10% commission, less the $145,000 already paid to 

appellees. Using this formula, Anderson stated if the jury believed SFB could have sold all the 

furniture Broyhill claimed it had available, SFB would have earned $1.855 million in 

commissions. 

To award $455,000, the jury had to find that, but for Broyhill’s breach, SFB would have 

sold $6 million ($6 million multiplied by 10% less $145,000). From the evidence in the record, 

some of which is detailed above, the jury could have reasonably concluded that, but for 

Broyhill’s failures to comply with the agreement, SFB would have sold more furniture than what 

it did. We also note that the jury also could have reasonably concluded SFB could not have sold 

the full $20 million Broyhill wanted it to sell, particularly in light of the evidence that Broyhill 

had Big Lots sell furniture in competition with the Pop-up Sale, despite Broyhill’s representation 

to SFB that it was the only promoter being considered for the liquidation sale. After reviewing 

the entire record, we conclude there is evidence in the record to support the jury’s finding, and 

that finding is not against the great weight and preponderance of the evidence. See Gulf States 

Util. Co., 79 S.W.3d at 566 (jury has discretion to award damages within range of evidence 

presented at trial); Khorshid, Inc. v. Christian, 257 S.W.3d 748, 761 (Tex. App.—Dallas 2008, 

no pet.) (explaining that jury has broad discretion to award damages within range of evidence 

presented at trial as long as rational basis exists for calculation). We overrule appellants’ first 

issue in its entirety. In light of our disposition of this issue, we need not address appellants’ 

fourth issue or appellees’ second cross-point, both of which address appellees’ quantum meruit 

claim. 
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 In their second issue, appellants contend we must reverse the $100,000 judgment against 

Lavercombe based on fraud. Appellants argue there is no evidence or factually insufficient 

evidence that Lavercombe made any misrepresentation with intent “never to perform the contract 

at the time the contract was made.” Alternatively, appellants claim there is no evidence to 

support the damage award. Finally, they argue any damages against Lavercombe are subsumed 

in those awarded against Broyhill and are therefore barred under the “single injury-one 

satisfaction” rule. 

Again, we review the evidence in the light most favorable to the verdict, crediting 

favorable evidence if reasonable jurors could and disregarding contrary evidence unless 

reasonable jurors could not. Del Lago Partners, Inc., 307 S.W.3d at 770. To address a factual 

sufficiency challenge, we must consider and weigh all of the evidence and should set aside a fact 

finding only if the evidence is so weak or the finding is so against the great weight and 

preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 

S.W.2d 629, 635 (Tex. 1986). We must conduct a meaningful review and if, after doing so, we 

determine the evidence is factually insufficient, we must “detail the evidence relevant to the 

issue in consideration and clearly state why the jury’s finding is factually insufficient or is so 

against the great weight and preponderance as to be manifestly unjust; why it shocks the 

conscience; or clearly demonstrates bias.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 

757, 761 (Tex. 2003). 

A fraud cause of action requires “a material misrepresentation, which was false, and 

which was either known to be false when made or was asserted without knowledge of its truth, 

which was intended to be acted upon, which was relied upon, and which caused injury.” 

Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 47‒48 
 15

(Tex. 1998). A promise of future performance constitutes an actionable misrepresentation if the 

promise was made with no intention of performing at the time it was made. Id. at 48. The mere 

failure to perform a contract, however, is not evidence of fraud. See id. Rather, appellees had to 

present evidence that Lavercombe made representations with the intent to deceive and with no 

intention of performing as represented. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 

434 (Tex. 1986). And the evidence presented must be relevant to Lavercombe’s intent at the 

time the representation was made. Id. 

Appellants claim the evidence is legally and factually insufficient to support the jury’s 

finding that Lavercombe committed fraud against SFB with respect to the contract. In response, 

appellees assert that, contrary to appellants’ brief and argument, appellees’ claim for fraud was 

that Lavercombe made a material representation as to the quantity and availability of certain 

upholstery products, knew the representation was false when he made it, and intended SFB rely 

on it, and that SFB canceled another order in reliance, “thereby suffering injury.” 

With respect to the facts raised by appellees’ claim for fraud, the evidence at trial shows 

Murphy ordered upholstery and case goods from Home Elegance to sell at the Pop-up Sale. 

According to Murphy, when he told Lavercombe about the order, Lavercombe said they had 

found $1 million dollars of “cut and sewn” goods in the Broyhill line and asked Murphy to 

cancel the Home Elegance order. Murphy said he agreed to cancel the order because he realized 

that $1 million dollars in Broyhill goods “equated to over $3 million” in sales. 

Lavercombe denied telling or asking Murphy to cancel the Home Elegance order. When 

asked whether there was plenty of upholstery goods or whether he was “just telling him that,” 

Lavercombe replied, “Oh, we had — you can make upholstery fast.” The emails discussing the 

subject verify that Lavercombe told Murphy they had “come up with about a million dollars 
 16

worth of upholstery [they wanted] him to use.” However, nothing in Lavercombe’s or Murphy’s 

testimony or the emails between Lavercombe, Poland, Taylor, and other Broyhill personnel 

shows that when Lavercombe told Murphy about the upholstery, he misrepresented either the 

quantity or availability of the products or that he did not intend to ship the products to SFB. 

Because there is no evidence in the record showing (1) Lavercombe made a material 

misrepresentation as to the quantity and availability of upholstery products, (2) the statement was 

made with knowledge of its falsity or made recklessly without any knowledge of the truth, or (3) 

that Lavercombe made the representations with the intent to deceive and with no intention of 

performing as represented, we sustain appellants’ second issue and render judgment that 

appellees take nothing on their fraud claim against Lavercombe. 

In their third issue, appellants claim we must reverse the award of attorney’s fees because 

appellees cannot prevail on their breach of contract claim. Having overruled appellants’ first 

issue, we need not address this argument. Also under this issue, appellants argue the trial court 

abused its discretion by overruling appellants’ pretrial motion to strike appellees’ evidence of 

attorney’s fees, thereby allowing appellees’ counsel to provide expert testimony on the same. 

We review the trial court’s denial of the motion to strike expert witness testimony for an 

abuse of discretion. Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 585 (Tex. App.—Houston 

[1st Dist.] 2004, no pet.). In such a review, we look to whether the trial court made its ruling 

without reference to any guiding rule or principle. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 

360 (Tex. 2000). 

Rule 193.6(a) provides that a party who “fails to make, amend, or supplement a discovery 

response in a timely manner may not introduce in evidence the material or information that was 

not timely disclosed” or “offer the testimony of a witness” who was not timely identified. TEX.
 17

R. CIV. P. 193.6(a). However, if the court finds good cause exists “for the failure to timely make, 

amend, or supplement the discovery response” or that the failure to do so will not unfairly 

surprise or unfairly prejudice the other party, rule 193.6 allows the trial court to admit the 

evidence. Id. The purpose behind this rule is to prevent trial by ambush. Lopez v. La Madeleine 

of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.—Dallas 2006, no pet.). The party seeking to 

introduce the evidence has the burden of establishing good cause and lack of unfair surprise or 

prejudice. TEX. R. CIV. P. 193.6(b). The court may grant a continuance or temporarily postpone 

the trial to allow the opponent to conduct discovery regarding any new information presented by 

the discovery response. See TEX. R. CIV. P. 193.6(c). 

Since filing their original petition in October 2008, appellees sought attorney’s fees in 

connection with this lawsuit. In their September 17, 2010 Third Amended Responses to 

Defendants’ requests for Disclosure, appellees designated Michael Richardson of Rose Walker, 

LLP as an expert witness on attorney’s fees. Over one month later, in their Objections and 

Responses to Defendants’ Second Requests for Production, appellees stated they would 

supplement discovery with all documents supporting attorney’s fees. On April 29, 2011, 

appellees filed a trial witness list including M. Ross Cunningham and Martin E. Rose as experts 

who would testify as to reasonable and necessary attorney’s fees. 

On May 5, 2011, appellants filed a pretrial motion to strike experts and exclude evidence, 

claiming appellees “failed to properly or timely designate an expert witness,” “have never 

produced their attorneys’ fee statements,” and failed “to produce any expert report on attorney’s 

fees.” Appellants specifically complained the April 2011 designation of trial counsel 

Cunningham and Rose as experts who would testify was untimely and provided insufficient 
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information, and that the attorney’s fees statements should be excluded because they had never 

been produced. 

 Appellees produced redacted fee statements May 10, 2011, followed by a response to 

appellants’ motion in which they stated good cause existed for the late designation of 

Cunningham and Rose. Appellees argued they timely designated Richardson as an expert 

witness on attorney’s fees but needed to substitute under rule 193.5(b) when Richardson left the 

law firm. With respect to the redacted fee statements filed two weeks before trial, appellees 

argued they were produced sufficiently far enough in advance of trial as not to constitute surprise 

or unfair prejudice. Appellees reasoned that appellants’ counsel, who had represented appellants 

since the inception of the case, would be “well aware of the amount and general nature of work 

performed by both sides.” The only information contained in the bills of which appellants’ 

counsel was not already aware was the “actual amount of time spent on each task, and the rates 

charged, to produce the specific amount of fees sought.” Appellees also noted that, although it 

was unlikely a deposition could shed any light on the reasonableness of those fees, they were 

willing to accommodate that request. The record before us does not, however, contain a request 

from appellants for a deposition or a motion to postpone trial. After considering “the motion, 

response, and argument of counsel,” the trial court denied appellants’ motion. 

Although appellants contend the trial court’s order was an abuse of discretion, we cannot 

agree. The trial court’s ruling in this case was supported by rule 193.6. Appellees response to 

appellants’ motion presented good cause for the substitution of counsel and argued the lack of 

unfair surprise or prejudice with respect to the fee statements. Appellants did not seek additional 

time nor did they present argument or contrary evidence of unfair surprise or prejudice. Under 

these circumstances, we cannot conclude the trial court abused its discretion. See Beard Family 
 19

P’ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex. App.—Austin 2003, no pet.) 

(admitting expert testimony on attorney’s fees despite untimely designation not abuse of 

discretion; the trial court found good cause to allow expert to testify and found no unfair surprise 

or prejudice because pleadings contained request for attorney fees from lawsuit’s inception). 

In their first cross-point, appellees contend the trial court erred by reducing the amount of 

attorney’s fees awarded by the jury from $933,750 to $510,000. 

On August 1, 2011, following the jury verdict, the trial court signed a final judgment, 

awarding $690,000 in attorney’s fees, along with $131,250 and $112,500 in the event Broyhill 

unsuccessfully appealed to the court of appeals and the supreme court respectively. Broyhill 

moved for judgment notwithstanding the verdict and filed a motion of new trial, in part, on 

appellees’ claim for attorney fees. On October 14, 2011, after having “entertained” Broyhill’s 

motions, the trial court vacated the August 1, 2011 judgment in its entirety and awarded 

$460,000 in reasonable and necessary attorney’s fees for preparation and trial, along with 

$30,000 and $20,000 in the event Broyhill unsuccessfully appealed to the court of appeals and 

the supreme court respectively. The remainder of the judgment was unchanged from the August 

1, 2011 judgment. 

We first note that the trial court’s October 2011 judgment states “In addition to the 

recovery above, the Court suggests a remittitur for attorney fees as follows . . . .” The judgment 

does not, however, condition the remittitur on a new trial, and nothing in the record shows the 

trial court presented a proper suggestion of remittitur before rendering the October 2011 

judgment. Appellees argue, and appellants concede, that the trial court had no power to order a 

remittitur without conditioning it on a new trial. Snoke v. Rep. Underwriters Ins. Co., 770 

S.W.2d 777, 777 (Tex. 1989). When a trial court orders a reduction in damages but does not 
 20

condition the reduction on a new trial, the order necessarily modifies the judgment regardless of 

whether it is incorrectly called a remittitur. Arkoma Basin Exploration Co. v. FMF Assocs. 

1990-A, Ltd., 249 S.W.3d 380, 390 (Tex. 2008). 

A trial court may order a remittitur only if “the evidence is factually insufficient to 

support the verdict.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 (Tex. 

2009). Thus, when reviewing a trial court’s remittitur, we do so under a factual sufficiency 

standard. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). As noted previously, 

we consider all of the evidence in the record to determine whether sufficient evidence supports 

the award. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (per curiam). We must keep in 

mind it is the jury’s role, not ours, to judge the credibility of the evidence, to determine the 

weight to be given to witnesses’ testimony, and to resolve inconsistencies within or conflicts 

among the witnesses’ testimony. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). No court is 

free to simply substitute its judgment for that of the jury. In re Columbia Med. Ctr., 290 S.W.3d 

at 210. We will set aside the verdict only if the evidence supporting the jury finding is so weak 

or so against the overwhelming weight of the evidence that the finding is clearly wrong and 

unjust. See Cain, 709 S.W.2d at 176. If a court of appeals affirms a challenged jury verdict as 

being supported by factually sufficient evidence, the court need not detail all the evidence in 

support of the verdict. In re Columbia Med. Ctr., 290 S.W.3d at 211. 

The record shows appellees hired the law firm of Rose Walker on September 25, 2008. 

Cunningham, lead counsel, testified about the amount of work involved during the two years and 

nine months before trial including document production in excess of 61,000 pages and 2750 

billable hours by attorneys and paralegals. According to Cunningham, the case was complicated 

by the existence of the oral contract which presented “unique and novel” issues. Cunningham 
 21

stated he was familiar with the fees and rates customarily charged by lawyers and paralegals in 

the Dallas area. In his opinion, the services provided by Rose Walker were necessary and the 

fees charged for those services were reasonable for the Dallas marketplace in light of the work 

done in the case. Cunningham stated a reasonable fee for the legal services provided by Rose 

Walker in this case was $920,000 in attorney’s fees. In addition, Cunningham testified there 

were expenses of $130,000 for, among other things, expert fees, deposition fees, travel expenses, 

filing fees, and court reporter costs. He also testified that $175,000 and $150,000 were 

reasonable expectation for attorney’s fees on appeal to the court of appeals and supreme court 

respectively. 

In contrast, Price Johnson testified that, in his opinion, this case was a routine contract 

case, and Rose Walker had an “inordinate [number] of people” working on the case which 

resulted in higher than necessary fees. Johnson opined that the fees were not reasonable or 

necessary, not only because there were too many lawyers involved, but also because they spent 

too many hours working on the case. According to Johnson, Rose Walker charged $17,000 for 

preparing and filing the original petition but he believed it should have cost around $3,000. He 

believed the total time preparing and taking Lavercombe’s deposition should not have exceeded 

$10,000; Rose Walker charged $46,500. Johnson stated a reasonable amount of attorney’s fees 

“would be probably half” what Rose Walker charged. Johnson also believed $25,000 to $30,000 

was a reasonable amount of attorney’s fees in the event of an appeal to the court of appeals. 

The jury heard conflicting evidence about the appropriate amount of attorney’s fees, with 

ranges of $460,000 to $920,000 for trial, $30,000 to $175,000 for an appeal to the court of 

appeals, and $15,000 to $150,000 for an appeal to the supreme court. The jury awarded 

$690,000 in attorney’s fees for trial, an amount well within the two amounts provided by the 
 22

testifying expert witnesses. Likewise, the jury awarded $131,250 in the event of an appeal to the 

court of appeals and $112,500 in the event of an appeal to the supreme court, again, amounts 

within the ranges presented at trial. After reviewing the entire record, we conclude these awards 

are not so against the great weight and preponderance of the evidence as to be manifestly unjust. 

Therefore, the trial court erred by granting appellants’ remittitur on attorney’s fees. We therefore 

sustain appellees’ first cross-point and render judgment reinstating the jury’s award of attorney’s 

fees. See Wal-Mart Stores, Inc., 102 S.W.3d at 710. 

We reverse the trial court’s judgment with respect to fraud and render judgment that 

appellees take nothing on their fraud claim against Lavercombe. We reverse the trial court’s 

judgment with respect to attorney’s fees and render judgment, reinstating the jury’s findings 

awarding appellees $690,000 in attorney’s fees for trial, $131,250 in the event of an appeal to the 

court of appeals, and $112,500 in the event of an appeal to the supreme court. In all other 

respects, we affirm the trial court’s judgment. 

111545F.P05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
 23

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

BROYHILL FURNITURE INDUSTRIES 

AND RANDY LAVERCOMBE, Appellants

No. 05-11-01545-CV V. 

RANDY MURPHY AND DAVE 

SHAFFER, Appellees 

 On Appeal from the 44th Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. 08-13276. 

Opinion delivered by Justice Francis, 

Justices Lang and Evans participating. 

 We VACATE our judgment dated June 19, 2013. 

In accordance with this Court’s opinion of this date, we REVERSE the trial court’s 

judgment with respect to fraud and RENDER judgment that appellees take nothing on their 

fraud claim against Lavercombe. We REVERSE the trial court’s judgment with respect to 

attorney’s fees and RENDER judgment, reinstating the jury’s findings awarding appellees 

$690,000 in attorney’s fees for trial, $131,250 in the event of an appeal to the court of appeals, 

and $112,500 in the event of an appeal to the supreme court. In all other respects, we AFFIRM

the trial court’s judgment. 

Judgment entered August 20, 2013 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE